Now that all the nastiness of the discovery phase is behind us in the Apple vs. Psystar case, both parties are trying to get the case settled before it goes to court, much like the recent Vernor vs. Autodesk case. Both Apple and Psystar have filed motions asking for a summary judgement.

Psystar also dismisses Apple's claim that the clone maker is in violation of the Digital Millennium Copyright Act. "Apple cannot assert claims under the DMCA for circumvention of a technological protection measure because such claims can be brought only when the circumvention is for the purpose of and has the effect of infringement," the motion reads, "Circumvention alone is not a violation of the DMCA; only circumvention to gain unauthorized access to that which copyright protects is actionable."

(emphasis mine)

That is simply not correct, and that's the whole problem with the DMCA: it makes any circumvention of a technological protection measure criminal, regardless of the purpose for the circumvention. That's exactly the reason that the DMCA effectively castrates Fair Use: because whether you circumvented the protection measure to infringe or not is irrelevant.

The FSF has made a lot of noise over this situation for a while. I don't think anyone except content distributors likes it, but I think that the present consensus is that that is the way that the DMCA actually reads. I don't know if it's been tested in court or not.